Fox News host Trey Gowdy explained Sunday why the pursuit to unseal the affidavit in the Mar-a-Lago search may be short-sighted.
Ahead of Federal Magistrate Judge Bruce Reinhart potentially forcing the Justice Department to release a redacted version, Gowdy pointed out the affidavit only provides one side of the story.
That side, according to Gowdy, is heavily biased in favor of the government.
"Even if we do get to see the affidavit, it’s just one side of the argument. It’s the government’s side. The target of the search doesn’t get to appear in front of a judge, and he doesn’t get to argue against the search or the affidavit," Gowdy explained.
"The information has not been cross-examined. And the rules of evidence, which do apply in court, don’t apply to search warrants," he pointed out.
Just as important, Gowdy, who is a former federal prosecutor, noted the burden of proof to obtain a search warrant is just probable cause, whereas a criminal conviction requires beyond a reasonable doubt, a much higher standard.
"It takes probable cause to search, but it takes a whole lot more than that to convict. Whatever’s in the affidavit, it may or may not wind up being true or proven," Gowdy explained. "And it certainly isn’t the whole story, because only the government participates in seeking a search warrant. We don’t know and we won’t know until both sides present their facts and test the evidence on the other side."
Trey Gowdy: Mar-a-Lago raid eroded trust in the DOJ, FBI youtu.be
In a world of tribal politics, ardent Trump supporters believe he is innocent, while fierce Trump critics believe he is guilty. So will releasing the affidavit even make a difference?
"Does the evidence still matter or have people already made up their minds?" Gowdy went on to say. "Despite what others may tell you, waiting and wanting to see the evidence is good. It’s even better when the jury hasn’t already made up its mind."
The court of public opinion aside, the release of the affitavit is not necessarily a win for transparency.
In fact, Reinhart indicated Monday that extensive government redactions could strip the affidavit of any real public significance and render it meaningless.
"I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government," Reinhart said.
Federal Magistrate Judge Bruce Reinhart appeared to give transparency a victory on Thursday when he ordered the Justice Department to prepare the search warrant affidavit in the case of former President Donald Trump for public release.
But even if the affidavit is released, what the American people see will probably be a highly redacted version that provides little transparency.
The government argued the search warrant affidavit should remain under government seal to protect the integrity of its ongoing investigation. But Reinhart disagreed, suggesting the public interest in the high-profile case may outweigh the DOJ's interests.
"I find that on the present record the Government has not met its burden of showing that the entire affidavit should remain sealed," Reinhart ordered.
The judge thus gave the government until next Thursday to file with his court "its proposed redactions along with a legal memorandum setting forth the justification for the proposed redactions."
Attorney Harmeet Dhillon explained on Fox News that she does not believe the affidavit will ever see the public eye.
"I think you are going to see virtually nothing after the redactions are presented to the judge," she said. "I think that the judge will take a look and see whether he agrees with the redactions or not, and then there will be some back and forth.
"Ultimately though, what we are seeing here is not some sort of outrageous change of behavior by the DOJ," she explained. "This is actually their existing way that they deal with requests like this. They typically stonewall, they typically hold all the cards. They never want to show a target or a defendant what they have. And they are very rarely held accountable, including by magistrate judges."
Dhillon added that especially in cases that involve national security — a category into which Trump's case falls — the search warrant affidavit is "restricted" to the defendant and their counsel.
In fact, the Justice Department argued the exact point Dhillon made, namely that a redacted affidavit will not provide the public any new information.
The government said in a court filing this week:
The government has carefully considered whether the affidavit can be released subject toredactions. For the reasons discussed below, the redactions necessary to mitigate harms tothe integrity of the investigation would be so extensive as to render the remaining unsealedtext devoid of meaningful content, and the release of such a redacted version would not serveany public interest.
Attorney General Merrick Garland said at a press conference last week that the DOJ will speak through court filings.
But as constitutional scholar Jonathan Turley explained this week, repeated leaks from within the DOJ to media outlets are framing the public narrative of the case, which a new poll found is assailing public trust in the FBI.
The Rasmussen survey discovered that, after the FBI's Mar-a-Lago raid, a majority of Americans now view the FBI as "Biden's Gestapo."
The federal judge who purportedly approved the search warrant at Mar-a-Lago once represented employees of Jeffrey Epstein — after working in the U.S. attorney's office that prosecuted Epstein.
The New York Post reported that federal magistrate Judge Bruce Reinhart approved the warrant that allowed FBI agents to raid Trump's south Florida resort.
The court's online database shows Reinhart approved a warrant application recently, but the exact details of the warrant remain under government seal.
Reinhart has served as a federal judge since March 2018, according to his online bio. Before taking the bench, Reinhart worked in private practice for 10 years after serving as an assistant U.S. attorney in South Florida from 1996 to 2008.
According to the Miami Herald, Reinhart abruptly left the U.S. attorney's office on Jan. 1, 2008. By the next day, he was representing key Epstein employees.
Importantly, Reinhart worked in he same U.S. attorney's office that was at the time prosecuting Epstein for sexual crimes against children. That office cut Epstein a sweetheart deal that allowed him to plead guilty to lesser state charges, and he essentially avoided serving any time in jail.
For his part, Reinhart denied that he ever represented Epstein himself. But he admitted to representing Epstein's employees, including his pilots, "his scheduler, Sarah Kellen; and Nadia Marcinkova, described by some victims as Epstein’s sex slave," the Herald reported in 2018.
More from the Herald's story:
In 2011, Reinhart was named in the Crime Victims’ Rights Act lawsuit, which accused him of violating Justice Department policies by switching sides, implying that he leveraged inside information about Epstein’s investigation to curry favor with Epstein. Reinhart, in a sworn declaration attached to the CVRA case, denied the allegation, saying he did not participate in Epstein’s criminal case and “never learned any confidential, non-public information about the Epstein matter.’’
The U.S. Attorney’s Office has since disputed that, saying in court papers that he did possess confidential information about the case.
While the exact purpose of the raid remains unclear, law enforcement sources have said the FBI was looking for classified documents that Trump allegedly removed from the White House.
Meanwhile, constitutional lawyer Alan Dershowitz has described the raid as "unconstitutional" and "absolutely outrageous," suggesting the matter should have been settled by lawyers and a judge.
Manipulating the criminal code to find a basis to search the home of a political enemy represents an appalling weaponization of the criminal justice system.
The Mar-A-Lago warrant illustrates the long-standing constitutional anomaly of letting magistrate judges sign search warrants.
Given the similarities between the Russia hoax and this get-Trump hoax, let's assume the affidavit has the same issues as the Carter Page FISA applications.
The federal judge who signed off on the FBI’s raid of former President Donald Trump’s home Mar-a-Lago on Monday quit his job as an assistant U.S. attorney in South Florida in 2008 after he was hired by convicted pedophile and sex trafficker Jeffrey Epstein to represent his employees. Bruce Reinhart, now U.S. magistrate judge for […]
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